2003 PLP (Trib (PTD)

Date of hearing: 25th February, 2002. MIAN ABDUL QAYYUM, MEMBER (JUDICIAL):‑‑This appeal is directed against the Order in Original No.162/2001, dated 7‑5‑2001 (dispatched on 8‑5‑2001) passed by the learned Deputy Collector (Adjudication) Lahore, whereby a second hand Fork Lifter SerialfNo.10570 has been confiscated on the following grounds that: ‑‑ (i) the Bill of Entry IGM No. 1354 of 1987, dated 11‑7‑1987 has not been verified as the relevant record for that period is no longer available with the concerned customs station, (ii) the appellant has not been able to furnish proof in support of transaction ,.which led to delivery of the machinery from the importer to subsequent buyers and finally to the present owner; (iii) the benefit of doubt could not be given to the appellant as the same would tantamount to jeopardizing the Government's legitimate revenue.

2. The appellant was however, given an option to get the vehicle released on payment of redemption fine of Rs. 10,000 besides payment of duty and taxes on the value appraised by the competent Customs staff, Dry Port or CFS, Thokar Niaz Beg, Lahore as the case may be.

3. Out of the three grounds stated above which prevailed with the learned Adjudicating Officer while ordering confiscation of the Fork Lifter ground No. II could not have been the basis of any adverse finding because no such allegation was raised in the show‑cause notice. We are fortified in this behalf by the observations of the Hon'ble Supreme Court, contained in 1987 SCMR 1840. The impugned order even otherwise is contradictory in this regard because after holding in middle of page 5 that the respondents have not been able to furnish proof in support of "transaction which led to delivery of the machine from importer to the subsequent buyers and finally to the present owner i.e. respondents." an option has been given to them in the last portion of the Para. to have the machine released, on payment of redemption fine of Rs.10,000 in addition to the duty and taxes leviable thereon.

4. Admittedly, the Bill of Entry IGM No.1354 of 1987, dated 11‑7‑1987 was produced during the adjudicating proceedings by the appellant in order to prove valid import of the confiscated Fork Lifter. Admittedly the said Bill of Entry could not be verified because the record relating to the said bill of entry has since been destroyed. This fact finds mention in letter by the learned Assistant Collector of Customs, Appraisement (Audit), Karachi, dated 17‑1‑2002 addressed to the‑learned D.R. who produced the same in Court establishes it. This fact that the relevant record was destroyed and the Bill of Entry No. 1354 of 1987, dated 11‑7‑1987 could not be verified led the learned Adjudicating Officer to hold the view that it was a case in which benefit of doubt could be extended but strangely by ignoring the settled law that the benefit of doubt always goes in favour of the accused/respondent and never to the prosecution, the learned Adjudicating Officer extended the same to the prosecution on the ground that if the same was allowed in favour of the appellant then the Governments legitimate revenue could be jeopardized. This approach is absolutely illegal and without any foundation. The benefit of doubt in any case had to go to the appellant. We, therefore, give the benefit of doubt to the appellant and direct release of the confiscated Fork Lifter to its lawful owner without any conditions. C.M.A./718/Tax (Trib.) Appeal Accepted.